Why I’m Not a Copyright Pessimist

by on August 2, 2008 · 19 comments

I too am sad to see William Patry hanging up his spurs. I can sympathize with a lot of he says. I too consider myself a copyright centrist and a defender of copyright’s traditions and so find it frustrating to be forced by recent trends to be constantly on the “anti-copyright” side of every argument. However, I don’t share Patry’s depression regarding recent trends in the copyright world. Because while the legislative developments over the last 30 years have been an unbroken string of disasters, most other aspects of the copyright system have actually gone pretty well.

One ray of light is the courts, which continue to get more right than they get wrong. The courts have, for example tended to uphold the first sale doctrine and fair use against concerted challenges from the copyright industries. Had Congress not passed the 1976 Copyright Act, the NET Act in 1997, and the DMCA and CTEA in 1998, my sense is that we’d actually have a pretty balanced copyright system. This suggests to me that restoring copyright sanity wouldn’t actually be that hard, if Congress were ever inclined to do so. To a large extent, it would simply have to repeal the bad legislation enacted during the 1990s.

I can think of two reasons my outlook might be more optimistic than Patry’s. One is that I’m younger than he is. I graduated from high school in 1998, which was almost certainly the low point when it comes to copyright policy on the Hill. While advocates of balanced copyright haven’t passed any major legislative victories since then, they have blocked most of the bad ideas that have come down the pike. We killed Fritz Hollings godawful SSSCA, the broadcast flag, “analog hole” legislation, and so forth. Given the lopsided advantages of the copyright maximalist in terms of funding and lobbying muscle, holding our own isn’t bad.

I think another reason I might be less inclined to get depressed than Patry is that I’m not a copyright lawyer. One of the most important trends of the last couple of decades is a steady divergence between the letter of copyright law and peoples’ actual practice. At the same time copyright law has gotten more draconian, it has also grown less powerful. More and more people are simply ignoring copyright law and doing as they please. A few of them get caught and face draconian penalties, but the vast majority ignore the law without any real consequences.

I imagine this is depressing for a copyright lawyer to see an ever-growing chasm between the letter of the law and peoples’ actual behavior. The copyright lobby’s extremism is steadily making copyright law less relevant and pushing more and more people to simply ignore it. That’s depressing for someone who loves copyright law, but I’m not sure it’s so terrible for the rest of us. I would, of course, prefer to have a reasonable set of copyright laws that most people would respect and obey. But I’m not sure it’s such a terrible thing when people react to unreasonable laws by ignoring them. Eventually, Congress will notice that there’s little correspondence between what people are doing and what the law says they ought to be doing, and they’ll change the laws accordingly. I’d prefer that happen sooner rather than later, but I have little doubt that it will happen, and I’m not going to lose sleep over it in the interim.

  • http://linuxworld.com/community/ Don Marti

    Don’t forget the Elcomsoft case — the only time that a US Attorney tried to put a case of circumvention without infringement in front of a jury, the result was a jury nullification. It isn’t a generational thing. Copyright expansion goes beyond most people’s copynorms, and needs to back off.

  • http://PatryCopyrightBlog William Patry

    Tim, I am happy you are more optimistic than I. I don’t have enough data to know whether your generational theory works. I have always thought many younger people are more pessimistic than I. I would add to the mix case law, which has been mixed. Grokster, for example, was a terrible decision regardless of how one feels about the result. The Bridgeport sampling case that held there is no de minimis threshold for infringement of sound recordings is a disaster. The MAI v. Peak line of cases on RAM copying have been extremely harmful. The Ninth Circuit’s decisions on divisibility, now joined by the Second Circuit are absurd. At the same time the CoStar decision and the requirement of a volitional act has been positive as have the caching and indexing cases, so I wouldn’t say the case law has been as bad as the legislative record. But the globalization of the worst features of U.S. law through trade agreements should also concern us deeply.

    In any event, we certainly need people who are optimistic now more than ever, and I am thrilled you are one of them.
    Bill

  • dmarti

    Don’t forget the Elcomsoft case — the only time that a US Attorney tried to put a case of circumvention without infringement in front of a jury, the result was a jury nullification. It isn’t a generational thing. Copyright expansion goes beyond most people’s copynorms, and needs to back off.

  • William Patry

    Tim, I am happy you are more optimistic than I. I don’t have enough data to know whether your generational theory works. I have always thought many younger people are more pessimistic than I. I would add to the mix case law, which has been mixed. Grokster, for example, was a terrible decision regardless of how one feels about the result. The Bridgeport sampling case that held there is no de minimis threshold for infringement of sound recordings is a disaster. The MAI v. Peak line of cases on RAM copying have been extremely harmful. The Ninth Circuit’s decisions on divisibility, now joined by the Second Circuit are absurd. At the same time the CoStar decision and the requirement of a volitional act has been positive as have the caching and indexing cases, so I wouldn’t say the case law has been as bad as the legislative record. But the globalization of the worst features of U.S. law through trade agreements should also concern us deeply.

    In any event, we certainly need people who are optimistic now more than ever, and I am thrilled you are one of them.
    Bill

  • http://www.thestalwart.com Joseph Weisenthal

    The divergence you cite between law and actual behavior is right on. When I focus on all the idiotic laws that get passed in all kinds of areas I get really depressed. If the world really looked the way politicians would like to mold it, I’d want to plug myself into a morphine drip and never take it out.

    I get a lot more optimistic on all kinds of things when I see how the world actually is.

    Even with that though, the morphine drip sounds nice sometimes.

  • http://www.thestalwart.com Joseph Weisenthal

    The divergence you cite between law and actual behavior is right on. When I focus on all the idiotic laws that get passed in all kinds of areas I get really depressed. If the world really looked the way politicians would like to mold it, I’d want to plug myself into a morphine drip and never take it out.

    I get a lot more optimistic on all kinds of things when I see how the world actually is.

    Even with that though, the morphine drip sounds nice sometimes.

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry

    But the globalization of the worst features of U.S. law through trade agreements should also concern us deeply.

    Yes, this sets a really bad precedent, and has helped build up resentment against the US (as if there weren’t already enough reasons)

    I’ve seen this first hand in my trips to Poland each year since 1998. Poland is still one of the most pro-US countries in the world, but, leaving aside the foreign policy disasters of the previous 8 years or so, I observed that there is an awareness of how the US has tried to strong arm their IP rules on other countries, and it was the Polish agricultural rep. who had helped derail software patent directive in the EU, and I was (pleasantly) surprised how popular that action was, and how many in the younger computer-saavy generation knew about that issue.

    As a Architect, I aam lucky to work in a field that up until now has been relatively unbothered by the silly eccesses of patent and copyright laws, but I am concerned that condition may be temporary, seeing what’s been going on in other fields.

    I suspect the reason architecture is (relatively) unaffected by this is that much of what an Architect does can’t just be copied for another project.

    Would anyone know of a blog focusing on IP issues related to architecture?

    (Adam/Jerry/Jim: Here’s your chance; find me a good architecture IP blog and I might not stick around here here, asking you all sorts of question and making uncomfortable ppoints…)

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry

    Oh, and if we are talking about bad decisions, the Blizzard V Bnet D has got to be up there:

    http://www.eff.org/cases/blizzard-v-bnetd

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    See the Ubersoft cartoon. While not specifically on copyright, it does make a poignant observation that we have entered an era were any activity (such as a perceived copyright infringement) that frustrates the corporate revenue stream is becoming ever more criminalized.

  • http://enigmafoundry.wordpress.com eee_eff

    But the globalization of the worst features of U.S. law through trade agreements should also concern us deeply.

    Yes, this sets a really bad precedent, and has helped build up resentment against the US (as if there weren’t already enough reasons)

    I’ve seen this first hand in my trips to Poland each year since 1998. Poland is still one of the most pro-US countries in the world, but, leaving aside the foreign policy disasters of the previous 8 years or so, I observed that there is an awareness of how the US has tried to strong arm their IP rules on other countries, and it was the Polish agricultural rep. who had helped derail software patent directive in the EU, and I was (pleasantly) surprised how popular that action was, and how many in the younger computer-saavy generation knew about that issue.

    As a Architect, I aam lucky to work in a field that up until now has been relatively unbothered by the silly eccesses of patent and copyright laws, but I am concerned that condition may be temporary, seeing what’s been going on in other fields.

    I suspect the reason architecture is (relatively) unaffected by this is that much of what an Architect does can’t just be copied for another project.

    Would anyone know of a blog focusing on IP issues related to architecture?

    (Adam/Jerry/Jim: Here’s your chance; find me a good architecture IP blog and I might not stick around here here, asking you all sorts of question and making uncomfortable ppoints…)

  • http://enigmafoundry.wordpress.com eee_eff

    Oh, and if we are talking about bad decisions, the Blizzard V Bnet D has got to be up there:

    http://www.eff.org/cases/blizzard-v-bnetd

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    See the Ubersoft cartoon. While not specifically on copyright, it does make a poignant observation that we have entered an era were any activity (such as a perceived copyright infringement) that frustrates the corporate revenue stream is becoming ever more criminalized.

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